Courtroom secrecy is under fire in Canada

ByTom Regan Staff writer of The Christian Science MonitorJuly 3, 2001

When Clayton Mentuck confessed not once, but five times on videotape to a 1996 murder in Manitoba, Canada, it seemed certain he would spend much of his life behind bars.

But then the unexpected happened. The trial judge acquitted Mr. Mentuck, ruling that the police obtained the confessions using "positively overwhelming" inducements. But the public was never to hear the details of this confession - or the police methods in extracting it - because the judge had issued a ban on media coverage of most of the trial. The Royal Canadian Mounted Police had requested the ban, saying it needed to protect the undercover methods its operatives used to gain the confession.

Canada's longstanding practice of protecting certain parties in court cases is coming under fire from media - and even being rendered obsolete by advancing technologies.

Nick Hirst, editor of the Winnipeg Free Press - one of the papers leading the fight against the publication ban - says the public is growing skeptical of official secrecy. "What this case is really all about is a change in previous presumptions about the courts and the police - the idea that what the police and the courts do for you is always good," he says. "This is a societal change in Canada."

If the Supreme Court sides with the media, it could significantly alter the balance between the right of police to protect their secrets and the public's right to know about them.

Parallel cases show paradox

While most Canadian trials are open to the public, the proceedings of many trials may be banned from publication. (In the US, all proceedings are open to the media except testimony given in Grand Jury hearings. Publication bans are issued rarely, such as when a judge enacts a ban to protect an underage victim of sexual assault, or if national secrets are endangered.) In some cases, the bans are part of the statutes of the federal or provincial legal systems - for instance, in the case of a young offender in Canada (under the age of 16), the media may not identify the youth without permission of the judge.

The publication ban in the Mentuck case was not provided for by statute.

But even while the Canadian Supreme Court is deliberating on the Mentuck case, a court case in the US involving a Canadian police operation illustrates the growing paradox of trying to keep court proceedings secret in an age when technology allows media to publish across physical borders instantly.

In Washington State, Atif Rafey and Sebastien Burns will be tried for the murder of Rafey's family seven years ago. The pair fled to Canada, where they were eventually captured by Canadian police and later extradited to the US.

The Canadian police used much the same methods to obtain confessions from Rafey and Burns as they did from Mentuck. Now, the details of those methods will be heard in a US courtroom, and will probably be covered by Canadian media.

Even one of the lawyers who argued in favor of the publication ban in the Mentuck case says the Internet and satellite TV will make it increasingly difficult to use publication bans to protect police techniques.

"The fact is that countries like Canada and England may be moving much closer to a US-style court-media relationship, whether they want to or not," says Heather Leonoff, a lawyer for the Manitoba Justice Department. "It's just going to get a lot harder to keep [media bans] in place."

Ms. Leonoff warns that publicizing undercover methods could put police officers' lives at risk. "The main issue to us is the safety of Canadian police officers. If the details are known to the public, people may be aware that they are part of a sting. And that could lead to a dangerous situation."

Courtroom privacy obsolete?

But Paul Schabas, the lawyer representing the Canadian Newspaper Association before the Supreme Court in the Mentuck appeal, disagrees.

"The tactics that are being kept secret ... are well known in publicly available legal documents, and on the Internet, in decisions that deal with these sort of police activities. And then there is the Rafey-Burns case in Washington State, and many other examples," he says. "The question we really have to ask is, do these publication bans serve any purpose at all?"

Leonoff, who says she is not in favor of publication bans that merely shield judges and police from legitimate public scrutiny, still thinks there is need for them at times.

"You have to measure the effectiveness of law enforcement versus the theoretical value of publication bans - and the practical value of publication bans," Leonoff says.

Mr. Schabas says the issue has gone beyond that point, however.

"We already live in a global village," he says. "Besides, it's never been impossible for a person to have a fair trial in Canada because of publicity, nor have police tactics been compromised by public discussion of their effectiveness."

And if that makes Canada a little more like the US, that's not necessarily a bad thing, Schabas adds. "Canadians are rightly skeptical about the US when it comes to many areas.... But not everything about the US is bad. And lots of public debate about police tactics is a good thing."